Refusing to Take Yes for an Answer: Remember the Pardons in the Desk Drawer

One notable aspect of yesterday’s hearing on Trump’s absolute immunity claims is the fact that James Pearce — and through him, Jack Smith — refused to take yes for an answer.

They refused to accept what Judge Florence Pan, at least, seemed to suggest would be the quickest way to get to trial.

Throughout the hearing, Judges Michelle Childs and Pan seemed persuaded by American Oversight’s amicus argument that Midland Asphalt prohibits this appeal. While Childs never seemed to fully concede that point, after Pearce responded to a Childs’ argument by stating that because this involves a President, the immunity analysis is different, Pan asked Pearce why he wasn’t adopting the American Oversight argument. Pearce responded, first, by emphasizing the goal of “doing justice” and so getting the law right, and only secondarily getting to trial quickly.

Judge Pan: Why aren’t you taking the position that we should dismiss this appeal because it’s interlocutory? Doesn’t that advance your interests?

Pearce: Our interests are two-fold. One, as in United States versus Nixon, it is in doing justice. And the second is to move promptly to satisfy the public’s and the defendant’s interest in a prompt resolution of this trial. But doing justice means getting the law right, and our view is even if a dismissal on jurisdiction might move this case faster — actually, empirically, that’s hard to know — we just don’t think that’s the right analysis here, on either immunity or the second claim.

So Pan set about figuring out how they could use the hypothetical statutory jurisdiction to reach the merits even if she and, especially, Childs still had doubts they were allowed to do that.

Pan: If we have discretion to reach the merits versus just dismissing this case under Midland Asphalt, which I think is a strong precedent which which suggests that this appeal is interlocutory and does not fall under the collateral order doctrine, how should we determine how to exercise that jurisdiction, about whether or not we should reach the merits?

Pearce: So I think in the American Hospitals decision, the 2020 decision, the court said, the formulation was something like, we’re doubtful as to our jurisdiction but nonetheless, invoking the line of cases you’ve just described, went on to decide the merits. We would urge the court to do the same here, even if it entertains doubts with respect to the jurisdiction. Yes, hypothetical statutory jurisdiction is available under the law of the circuit. The court should use that to reach the merits.

At least some of the panelists on this worthwhile Lawfare Podcast about the hearing took that “doing justice” line to be fluff, and took the “empirical” questions about whether rejecting this appeal on jurisdictional grounds would really speed things up.

But I’m not so sure.

Granted, later in the hearing, Pearce provided some explanation for why a rejection on jurisdictional grounds might not help move things along. It came as part of a discussion of two questions: Childs’ question about whether the panel should rule on the broad question of presidential immunity, as Judge Chutkan had, or whether — as Judge Henderson at least entertained — they should assess whether a president was immune from prosecution for the crimes, as charged in the indictment, as most Motions to Dismiss are treated. In the same discussion, Henderson asked twice about how to apply the Blassingame decision in this context. Both these questions are about whether Trump can be prosecuted only because of the nature of the charges in the indictment, or whether as an ex-President he can be charged, regardless of what the charges are.

But as the discussion proceeded, Pearce voiced some of the concerns about what a more narrow ruling would do to the prosecution.

Childs: Are we to look at the broader question that was dealt with by Judge Chutkan with respect to Presidential immunity, no, absolutely immunity for no criminal prosecution of official acts, versus looking at this indictment and accepting as true the allegations that are brought there. Or both?

James Pearce: So we have a strong preference that the court adopts the former view, and looks at the question — in the way, as the District Court did, which is to say, based on questions of separation of powers, of constitutional text, history, precedent, Is there, in fact, immunity for a former President?

We think the answer to that is no, for of course all the reasons we put in the brief and I’m happy to sort of address here. Candidly, I think if the court gets to that second question, there are some hard questions about the nature of official acts. And frankly, as I think Judge Pan’s hypothetical described, I mean, what kind of world are we living in if, as I understood my friend on the other side to say here, a President orders his Seal team to assassinate his political rival and resigns, for example, before an impeachment? Not a criminal act.

President sells a pardon. Resigns, or is not impeached? Not a crime.

I think that is [an] extraordinarily frightening future, and that is the kind — if we’re talking about a balancing and a weighing of the interests — I think that should weigh extraordinarily heavily in the court’s consideration.

Henderson: Let me ask you about the effect of Blassingame. How does it either bind us. How is it persuasive to us.

Pearce: So, I think it, formally, has no application at all, because of course very early on in the opinion, the court says, “we’re not dealing with any questions of immunity in the criminal context.” I tend to agree with my friend on the other side that in many respects, it does reinforce the nature of the Fitzgerald standard outer perimeter standard. It says, you don’t look at intent, or you don’t look at purpose. Context plays a more important role than — often — the content of communications. I think the significant change of course is the acknowledgement of looking at a President — whether that President is acting in his or her role as office-seeker or office-holder.

But, again, to go back to my response to Judge Childs’ question, although that would change the nature of whether — it may change the nature of whether certain things are or are not official acts in the indictment, we just think that’s entirely the wrong paradigm to use. We think that under Fitzgerald — in fact, that would be inconsistent with Fitzgerald’s reasoning — and it’s also just irreconcilable with the nature of how criminal law works. I mean, to say that we’re not going to take account of motive or intent? There are plenty of acts that, everyday, I mean, for example, if I were going to encourage someone not to testify at trial because I wanted to go on a hike with that person, it’s not a crime. If I were to encourage someone not to go on a hike because their testimony a trial — sorry, encourage them to skip their trial testimony because their testimony was going to incriminate me?

It’s the same underlying act.

And now, when you map that onto the criminal–onto the Presidential context, you come up with some of the frightening hypotheticals where as long as something is plausibly official, even if it involves assassinating a prominent critic, or a business rival? That would seem to then, be exempt, potentially, from criminal prosecution, we certainly wouldn’t concede that. If that’s the world we need to live in. I think we would advance plenty of arguments below, but we really — but those arguments themselves would create satellite litigation that are an additional reason not to go down this route.

Childs: But looking, and thinking about your answer about potentially not looking at, your argument about motive and intent, when there is a criminal prosecution, that mens rea and that intent is part of the actual statute charged criminally.

Pearce: Yes. Precisely. And that’s why it wouldn’t make sense to use this non-motive — as I understand how Fitzgerald outer perimeter standard might work, it could say, “those types of official acts, official conduct, that is something from which a President is immune.” You don’t ever get to that second question of, well, did that person act with mens rea, can we prove it beyond a reasonable doubt, because at least under a theory where it’s not available at trial, then there’s no way to reach that conduct.

Childs: When we’re looking at this indictment, though — back to Judge Henderon’s question about the use of Blassingame. Some of the acts are the same or similar, and there was direct discussion of that in that opinion as determining whether it was office-seeker versus office-holder. So do we use Blassingame, at least for that?

Pearce: So if this court decides the case the way the district court does — did, pardon me — then I don’t think Blassingame has any role to play at all. Because there is no question of whether, you know, is this act official, or were these sets of allegations official? The question is, based on a Fitzgerald analysis and history, precedent, et cetera, is there any quantum of immunity for a former President. We think the answer to that question is no. There’s no reason, as the district court also found, to turn to the indictment and consider the outer perimeter, this civil outer perimeter standard.

Henderson: How about if you don’t decide it? On the Blassingame. [inaudible]

Pearce: If you don’t, [inaudible, cross talk] so there are a lot of different ways this court could not decide it that way. I think, to pick up on my response to Judge Childs, we certainly stand by our view in the brief that some substantial number of allegations would fall outside of an outer perimeter, and that, I think, is enough to affirm, I think either party is encouraging the court at that point to send the case back to the District Court. I think that would then create a series of challenging questions that I mentioned earlier: What are the evidentiary theories under which that evidence could potentially come in? And, but it would be our strong view and we would want, if the court followed that route, which we would urge the court not to, to make clear that immunity is an on-off switch. Right? This is the immunity appeal. If the court says, we affirm, we send it back, there’s no immunity. Then other things become evidentiary questions, or questions of jury instructions, which any appeal is then an appeal from a final judgment, if any final judgment.

Childs: And the immunity defense is never lost?

Pearce: Um, well, I don’t think it’s immunity at that point. I think this court, in what I’ve just described, will have said there is no immunity. There may be some other types of challenges, as evidence comes in at trial, but again, I think that would lead to this extraordinarily complicated litigation that is, not the topline reason, but certainly among the reasons why the court should not go down that path. [emphasis added]

As Childs and Pearce laid out, one problem with defining immunity in the criminal context with regards to official (in Blassingame, actions taken as an office-holder) and non-official (in Blassingame, actions taken as an office-seeker) acts is that criminal law, including the laws charged here, pivot on mens rea. Trump can’t be convicted of obstructing the vote certification, for example (assuming SCOTUS sustains its adoption with January 6), unless prosecutors can prove he had “corrupt purpose” in doing so, however that ends up being defined.

But also, if you’re going to split presidential immunity based on a categorization about official and unofficial acts, the evidentiary disputes become impossible. It would draw out that phase of litigation, probably requiring several hearings, but also would create expansive basis for appeal.

One argument John Sauer made yesterday, for example, is that because in Knight, the Second Circuit held that Trump’s Twitter account was a public forum on which he could not conduct viewpoint discrimination, it made his Tweets official acts. If the DC Circuit rules on an official/unofficial split, Trump would undoubtedly argue that under Knight none of his Tweets could come in as evidence, at least three of which are among the most critical pieces of evidence in the case.

But, as Pearce said, the difficulties such a split would create was not the topline concern here. They want DC Circuit to reach the merits, and they want DC Circuit to rule broadly, as Chutkan did.

I don’t think that “doing justice” comment is fluff. Immediately after Pearce presented his not-topline concern about how a categorical ruling would affect the prosecution, he and Pan returned to the theme of the hearing: The Seal Team Six assassination.

And also, selling pardons.

Immediately after that exchange — which was close to the end of Pearce’s time — Pan came back to what, as this really accessible George Conway column lays out, she had stripped things down to be the key issue.

Pan: Since President Trump concedes that a President can be criminally prosecuted under some circumstances — he says that is true only if he is first impeached and convicted by Congress, do you agree that this appeal largely boils down to whether he’s correct in his interpretation of the Impeachment Judgment Clause? That is, if he’s correct, that the Impeachment Judgment Clause includes this impeachment-first rule, then he wins, and if he’s wrong, if we think the Impeachment Judgement Clause does not contain an impeachment-first rule, then he loses?

Pearce: So I think that’s basically right. I mean, the defendant’s theory over the course of this litigation has evolved a bit, and I think, now, before this court, I understand the argument to be the principle submission to be as you’ve just described — what we call in our brief the conditioned precedent argument. That there is only liability — criminal liability for a former president — if that President has been impeached and convicted.

And that is wrong for textual, structural, historical reasons, and a host of practical ones, one of which I’ll start with again, to just amplify the point. It would mean that if a former President engages in assassination, selling pardons, these kinds of things, and then isn’t impeached and convicted? There is no accountability for that, for that individual. And that is frightening. [my emphasis]

While Pearce addressed Sauer’s historical argument briefly, this was close to the end of Pearce’s argument, and really the key point of the hearing. Pan had (as Conway laid out) stripped the issues down to whether Trump’s view on impeachment is correct, and then Pan had demonstrated, using hypotheticals, how impossibly absurd that outcome would be.

James Pearce and Florence Pan don’t want to give Joe Biden an easy way to legally assassinate Trump, only Trump is asking for that.

Pan’s laser focus on those hypotheticals provided Pearce opportunity to repeatedly do what he did far more subtly starting in October. As I argued then, the five hypotheticals that Pearce floated in October were all near analogues for Trump’s known actions.

  • Trading pardons to dissuade criminal associates from testifying against someone
  • Ordering the National Guard to murder his critics
  • Ordering an FBI agent to plant evidence on his political enemy
  • Taking a bribe in exchange for a family member getting a lucrative contract
  • Selling nuclear secrets to America’s adversaries

Todd Blanche (one of the lawyers representing Trump in both the stolen election and stolen documents cases, and so someone who is intimately familiar what kind of paperwork DOJ discovered, along with hundreds of classified documents, that Trump took with him when he left office) responded to this line of argument by calling the hypotheticals treason and suggesting they might be private acts, but arguing, as Sauer did yesterday that there would still be a remedy: impeachment.

10 Ignoring actual lessons from history, the Government provides a list of lurid hypotheticals that have never happened—including treason and murder. Response, at 20 (speculating that a President might “murder his most prominent critics” or “sell[] nuclear secrets to a foreign adversary”). Some or all of these hypotheticals, depending on the facts, would likely involve purely private conduct, rendering them irrelevant here. See id. Yet even if such examples somehow were within the outer perimeter of a President’s duties, it is overwhelmingly likely the House impeach and the Senate would convict, and the offending President would then be subject to “Indictment, Trial, Judgment and Punishment” by criminal prosecution. U.S. CONST. art. I, § 3, cl. 7. That is the process the Constitution provides, and the prosecution may not ignore it here. [my emphasis]

As Pan had laid out, though, one part of Trump’s argument for immunity is actually bigger than that, arguing for immunity regardless. Indeed, that’s how Pearce presented this very same argument in his appellate response. He took Trump’s claims of absolute immunity at his word, describing that these scenarios — but not the pardon one — would be flat-out legal.

The implications of the defendant’s broad immunity theory are sobering. In his view, a court should treat a President’s criminal conduct as immune from prosecution as long as it takes the form of correspondence with a state official about a matter in which there is a federal interest, a meeting with a member of the Executive Branch, or a statement on a matter of public concern. That approach would grant immunity from criminal prosecution to a President who accepts a bribe in exchange for directing a lucrative government contract to the payer; a President who instructs the FBI Director to plant incriminating evidence on a political enemy; a President who orders the National Guard to murder his most prominent critics; or a President who sells nuclear secrets to a foreign adversary, because in each of these scenarios, the President could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as Commander-in-Chief; or engaging in foreign diplomacy. Under the defendant’s framework, the Nation would have no recourse to deter a President from inciting his supporters during a State of the Union address to kill opposing lawmakers—thereby hamstringing any impeachment proceeding—to ensure that he remains in office unlawfully. See Blassingame v. Trump, 87 F.4th 1, 21 (D.C. Cir. 2023) (President’s delivery of the State of the Union address is an official act). Such a result would severely undermine the compelling public interest in the rule of law and criminal accountability. [my emphasis]

An analogue for Pan’s (more vivid) Seal Team Six hypothetical was in there: the National Guard order. And an analogue for her military secrets was in there: selling nuclear secrets.

But pardons aren’t in that brief. The only discussion of pardons in it pertained to the Nixon pardon.

Indeed, it was Sauer who briefed pardons, not Pearce. In an attempt to “prove” that presidents had committed crimes that had not been charged before, he cited the Marc Rich pardon — or rather an Andy McCarthy paywalled column about it — to imply that Bill Clinton committed a crime that had not been prosecuted.

The government argues that the absence of any prior criminal prosecution of a President in American history merely “reflects … the fact that most presidents have done nothing criminal.” Resp.Br.37 (citation omitted). This claim is untenable. App.Br.17 (citing examples of Presidents accused of crimes in official acts, from John Quincy Adams to Barack Obama). American history contains many such examples—President Reagan’s alleged involvement in Iran-Contra, President Clinton’s pardon of Marc Rich, President Bush’s claims of “weapons of mass destruction,” President Nixon’s firing of Archibald Cox, etc. 5 None of the above conduct was prosecuted. “Perhaps the most telling indication of a severe constitutional problem” with this prosecution “is a lack of historical precedent to support it.” Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2201 (2020) (cleaned up).

5 Tim Arango, Ex-Prosecutor’s Book Accuses Bush of Murder, N.Y. TIMES (July 7, 2008), https://www.nytimes.com/2008/07/07/business/media/07bugliosi.html; Andrew C. McCarthy, The Wages of Prosecuting Presidents for their Official Acts, NAT’L REVIEW (Dec. 9, 2023), https://www.nationalreview.com/2023/12/the-wagesof-prosecuting-presidents-over-their-official-acts/; The Editors, Iran-Contra Scandal Begins with Shredded Documents, HISTORY (Nov. 13, 2009), at https://www.history.com/this-day-in-history/oliver-north-starts-feeding-documentsinto-the-shredding-machine.

With regards to Iran-Contra, Pearce noted that “in Chapter 27” of Special Prosecutor Lawrence Walsh’s report, “assumes that President Reagan is subject to prosecution and says, but we didn’t get there evidentiarily.”

In response to Judge Pan’s hypotheticals yesterday, he returned to noted authority, Andy McCarthy’s opinion, about Marc Rich, then said again that pardons had come up historically and not been charged. Pan raised it as a hypothetical, but Sauer wanted to make good and sure that pardons could not be charged because, he said, Andy McCarthy says so.

But then both times Pearce mocked the implications of Sauer’s logic, he did raise selling pardons, even though he left it off his response brief. And he added the scenario of corruptly getting someone not to testify against oneself by inviting them on a hike!

Incidentally, according to Anna Bower, Walt Nauta — the aide who has refused to explain what he knows about what happened to the stolen classified documents that got brought to Bedminster in 2022 — along with his attorney Stan Woodward (and of course Boris Epshteyn), were at yesterday’s hearing.

But the reason — one reason — why I find the way the way pardons have gotten floated repeatedly in this claim of absolute immunity is that, along with hundreds of documents, including nuclear secrets, found at Mar-a-Lago on August 8, 2022, DOJ found documentation about clemency granted by Donald Trump, probably including that of:

Oh, and also, some kind of clemency document — one that has some tie to Emmanuel Macron and therefore possibly a pardon beyond the one we know about — for Roger Stone, the guy who was convicted after refusing to disclose the substance of conversations he had with Donald Trump about advance knowledge of the Russian hack-and-leak. The same guy who, in 2020, was allegedly plotting assassinations with his former NYPD buddy Sal Greco.

It’s certainly possible that James Pearce — and so Jack Smith — want to have a clear decision that presidents can be prosecuted for their official acts simply out of getting the law right.

But both sides in this argument seem to understand there’s something more going on.

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77 replies
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  2. Ginevra diBenci says:

    Thank you, EW. Every time I heard Sauer cite Blassingame or Fitzgerald, I reflexively winced. I was immensely grateful to Judge Pan for repeatedly returning the focus to the core issues; she is truly a standout among standout judges.

    My lingering question: a “successful” impeachment and conviction, especially today, rely upon majorities in both chambers of the party opposing the president–including a supermajority in the senate. This is of course a political, not legal, reality, but doesn’t the highly arguable fact of it also reinforce the political essence of impeachment as a remedy?

    That has always seemed to me like the Achilles heel of Trump’s newest immunity claims.

    • Faith_dc says:

      George Conway, on MSNBC the other night, pointed to the backdrop of the Capitol and said, ( paraphrase) “Is the Trump team saying we should trust justice of a criminal POTUS to THAT (pointing to the Capitol)? The most political body in the universe?” To those partisans, who have no rules (and no longer any moral or patriotic compass) to demand that they be impartial? It’s absurd.

      • Ginevra diBenci says:

        I saw Conway. Wished he was on longer because I was paywalled out of his column and I wanted to hear more of what he had to say.

          • Ginevra diBenci says:

            Thank you, Bruce, for that tip. I tried to go directly to the Atlantic, where I have long fought to access my subscription, then got frustrated and gave up. (In fairness, that subscription may finally have run out. Debating whether to give up Post and replace with Atlantic.)

            I’ve had issues with Wayback Machine before when I’ve tried to go not very far back, but will try again based on your suggestion.

    • BRUCE F COLE says:

      I agree with that, and would add that impeachment is so far outside the envelope of legal procedure that to claim that it has any controlling role with respect to US criminal or civil law is to inoculate American jurisprudence with a cancerous lesion.

      Earl’s and others’ comments in other posts about conviction upon impeachment being a civil penalty is true, but only in that explicitly extra-judicial context. It’s roughly analogous to legal process, but at the same time altogether an alien, political outlier to it.

      I mean, can anyone imagine how voir dire could possibly be inserted into a Senate trial?

  3. earlofhuntingdon says:

    Blanche and Sauer know that impeachment is a disciplinary tool the legislative branch rarely uses, and that conviction rarely follows, owing to political whims flowing through the Senate, not because of the egregiousness of the facts or certainty of applicable law. That’s why they argue for it as a precondition to criminal prosecution. Their approach would not deter crime or bad govt, but encourage it. The only consequence left would be the ballot box. Republicans are already at work to make it harder to be a voter, to vote, and to have their votes counted.

    Their emphasis on official vs. unofficial acts is also fact heavy, and a legal minefield that would bog down prosecutions, making both courts and prosecutors reluctant to take on such cases. Imagine Manhattan’s DA being in charge of Smith’s cases rather than Smith. Those are not consequences the courts should encourage.

    • Bobby Gladd says:

      “…a public official might be acquitted in the Senate for reasons other than the merits of the impeachment charges against him. In fact, that’s exactly what happened at Trump’s second impeachment trial. As Special Counsel Jack Smith noted in his D.C. Circuit brief, “At least 31 of the 43 Senators who voted to acquit the defendant”—Trump—“explained that their decision to do so rested in whole or in part on their agreement with the defendant’s argument that the Senate lacked jurisdiction to try him because he was no longer in office.”

      George Conway, The Atlantic today. Fine article. Almost feel sorry for Sauer.

      • Badger Robert says:

        The not guilty votes with respect to Andrew Johnson probably had a similar basis. The Senators knew Ben Wade of Ohio would ascend to the Presidency because the office of VP was vacant.

    • tje.esq@23 says:

      “Republicans are already at work to make it harder to be a voter, to vote, and to have their votes counted.”

      Sorry if already referenced elsewhere, but escaping many’s notice is a lawsuit “filed on behalf of a citizens group . . . ask[ing] that the Census Bureau be required to enforce Section 2 of the 14th Amendment, enacted in 1868 to strip congressional representation from states that disfranchise voters. . .,” causing offending states to lose House Seats and Electoral College votes proportional to the measured disenfranchisement.
      https://prospect.org/justice/2024-01-02-election-lawsuit-14th-amendment-trump/

      First round uses federal judge declaration that 300,000 Wisconsin voters were discharged from rolls after strict voting laws were implemented. https://prospect.org/justice/day-of-constitutional-reckoning-voting-rights/

      Section 2 of the 14th: https://constitution.congress.gov/browse/amendment-14/section-2/

      Constitutional Integrity v. Census Bureau: https://thearp.org/litigation/citizens-const-integrity-v-census-bureau/

      • Ginevra diBenci says:

        Of course this has all been part of their longer game. Quietly nullifying the amendments and clauses that have proven inconvenient (Logan Act, emoluments, the 14th as cited above) while strictly curtailing the voting rights of those who don’t vote for them.

  4. steverino_g says:

    In normal circumstances, it’s not difficult to respect defense attorneys who knowingly defend guilty defendants (given that everyone deserves a fair trial). But when your means of defense involves claiming (in a court of law) that the U.S. government is effectively a dictatorship because of how the President is above the law and is capable of granting immunity to his partners in crime via pardon, well then… you are no longer just a defense attorney doing their job at that point. You’ve become just like the organized insurrectionists storming the gates of the Capitol. Way to go Blanche and Sauer.

  5. John B.*^ says:

    I agree, but “impeachment is a disciplinary tool the legislative branch rarely uses, and that conviction rarely follows,,,” in the presidential context has never happened. And it appears with further fraying of the body politic and increasing polarization it will likely never happen.

  6. Badger Robert says:

    It is an interlocutory appeal. The panel wants to write an opinion that requires no further review. The panel also seeks to write a clear set of instructions that the trial court can use to eliminate appealable issues.
    It seems to me that the area of immunity when the President acts in a way that is confined to the US would be small or non existent. When the President is exercising his war powers, and the effects are external to the US, the criminal law would not apply. With respect to the President’s successes or failures as commander in chief, that would seem to be a political decision assigned by the Constitution to Congress.
    The absolute immunity claim desired by Trump seems absurd. That would keep the immunity claim alive. The government has a very straightforward task if Trump were to claim he was exercising his war powers.
    It could be that Sauer wants to make the claim his client wants to make, and to have it fail.

      • earthworm says:

        Pegging questionable acts to the war-powers aspect seems to simply beg a corrupt POTUS to declare war somewhere, so he can be a “wartime president,” with extra-ordinary, unaccountable powers, or to gin up kneejerk patriotism.
        Isnt that what we saw with Bush/Cheney?
        Isnt that what Reagan did by invading Grenada?

        • timbozone says:

          Under the US Constitution, only the Congress can legally declare war upon another nation. The President may >wage war< without a formal declaration of war. There are legal limits on the US President's power to wage war, although those laws are rarely enforced to stop Presidents from doing so, and most certainly permit quick and short term responses to geopolitical conditions. As always, the President is subject to impeachment by the Congress should he or she overstep their legal authority and/or oath of office.

  7. Lurks123 says:

    Sauer’s impeachment argument is so dumb and nonsensical, I can’t help wondering if it isn’t some ploy forming part of the overarching strategy, namely delay. Not that I have a theory as to how the ploy could work.

    Relatedly, I don’t understand why the judges didn’t say to Sauer at the outset: assuming this court does NOT think the impeachment clause means a president who has not been impeached/convicted can’t be criminally prosecuted, then what are your arguments on immunity?

    • billtheXVIII says:

      Trump’s lawyers would bark like a dog and pee on themsleves if they thought it would delay his day of judgment. They really are willing to debase themselves in order to chew up some clock.

  8. Robert of Had says:

    Their whole argument isn’t about innocence, it was about having the immunity to commit crimes without any consequences. It’s a trumped up version of Nixon’s “when the president does it…” claim.
    The “hypothetical” arguments of selling pardons, selling state secrets to foreign buyers, or killing American citizens aren’t hypothetical when we know for a fact Giuliani and Kushner were selling pardons, selling state secrets, and the Trump Covid 19 strategy was literally DEMOCIDE.

    • tje.esq@230 says:

      Please provide citations to support all the statements you make after “we know for a fact that…” above. These ‘facts’ are not known to me, perhaps because of the volume of matters to keep up with.

      This is an evidence-based-to-persuade blog and commentariot, and we all strengthen each other when we weigh each other’s evidence. We also weigh veracity, so reliability of information source and replication of data are also important here.

      Last, if there is judicial notice taken, or fact-finder assertainment, of something as “fact,” you need only reference that one source.

    • nord dakota says:

      My understanding is that covid pretty much killed more conservatives than liberals and probably continues to do so.

      • Rayne says:

        COVID is likely still killing more conservatives, but in states which are deeply red it won’t make a difference — they’ll still vote red.

        ADDER: oops, meant to add that the person who did the first analysis by county that I know of was Charles Gaba — more deaths in counties which went read. Last analysis I think was March this past year: https://acasignups.net/23/03/01/march-likely-final-monthly-update-county-level-redblue-covid-death-rate-divide-widens-again

        Will be interesting to see what this looks like in a year after this new JN surge and insufficient uptick of the new vaccine (not booster but vaccine).

        • Molly Pitcher says:

          From the Johns Hopkins Center for Health Security

          https://myemail.constantcontact.com/Health-Security-Decoded—January-11–2024.html

          Nearly 10,000 COVID deaths last month; US records more than 1,600 COVID deaths first week of December; US FDA leaders call for stronger vaccination efforts

          Holiday gatherings and the circulation of a new SARS-CoV-2 variant—the WHO variant of interest JN.1—led to an increased number of COVID-19 cases globally last month, WHO officials said this week. Nearly 10,000 COVID-19-related deaths were reported in December and hospital admissions grew by more than 40% in the almost 50 countries that continue to share pandemic trend information, mostly in Europe and the Americas.

          The US is experiencing the second largest COVID-19 wave since the start of the pandemic, based on wastewater data, and more than 1,600 people died of the disease the week of December 9, 2023, the last week of complete US CDC data. Experts predict the surge could reach its peak this week or soon after, but high transmission levels are expected to continue for at least another month. The JN.1 variant, an offspring of the BA.2.86 Omicron subvariant of SARS-CoV-2, accounts for an estimated 62% of US COVID-19 cases. Though the number of US COVID-19 hospitalizations continues to increase, JN.1 has not caused a surge in hospitalizations as was seen with Omicron

  9. Cheez Whiz says:

    Reading the discussion between Pierce and the 2 judges, it struck me as a discussion of the implications of the Unitary Executive theory promoted by Barr and others. If the people want something like a king, why shouldn’t he have king-like powers, including absolute immunity.

  10. Sussex Trafalgar says:

    Sauer’s motion and argument yesterday was frivolous. He should be sanctioned.

    Trump is a magnet for unethical attorneys. They flock to him.

    It makes one wonder what law school professors have been teaching their students over the past forty years.

      • ShallMustMay08 says:

        I watched the clip and entertaining but the gist is magnet for “schmethics” can’t be ignored.

        I am reminded of a tiny book titled “On Appeal” by Judge Coffin, from the 1stCA. He is legend in Maine but not known outside.

        He, for me (like Posner) admitted it all boiled down to finding a technical “out”.
        Appreciate the honesty of both but the bottom line is: Collegiality rules and save the profession.

        Not sure that is available option these times. But presume it will rule (for money until we cease to exist).

    • Bugboy321 says:

      “Trump is a magnet for unethical attorneys. They flock to him.”
      I’ve been wondering about this for several months. It all strikes me as less “unethical attorneys” than attorneys willing to allow Trump to call the legal shots. Then again, I suppose that qualifies as “unethical”?

      What else can explain the staggering gaps in legal logic here? Are law schools really getting that bad? Did none of these clowns think through the logical end of their so-called “immunity defense” (i.e., Seal Team 6…)?

  11. bawiggans says:

    Static in the media about the absurdity and inaptness of the Seal Team 6 assassination hypo flags the unconscious assumption framing media treatment that diminishes the import of the Trump prosecutions and shapes popular thinking about them: such things could not possibly happen here.

    Trump’s brand is to do things no one else would dare. Breaking precedents, smashing norms and ignoring law is his signature modus operandi and the source of much of his appeal. Establishing immunity clears the path for him to do anything that might cross his mind. This stubborn assumption is the substance of the complacency that, when combined with the fervor of the minority that actually supports Trump, threatens American democracy. All of human history gives the lie to the illusion that it can’t happen here.

  12. giorgino says:

    Small typo in the headline “Jack Smith’s team can ebe sure” — be sure, I’m sure. Thanks.

    [Not certain what paragraph you’re referring to…? /~Rayne]

    • giorgino says:

      It’s the headline on the home page.

      [Thank you. Not the headline but the blurb which isn’t visible on the post’s published page. Will fix, thanks. /~Rayne]

  13. bloopie2 says:

    Speaking of immunity, I note that Trump seems to consider himself immune to the requirements of normal court proceedings. He had earlier asked for permission to speak in closing arguments; the judge said “Yes”, but only on certain conditions. Trump has refused to accept those conditions, so now the judge has said “No”.

    Those conditions: “if, and only if, through counsel by 1/9/2024 and by himself, personally, on the record just before he speaks,” he agrees to the same limits that apply to attorneys. “He may not seek to introduce new evidence. He may not testify. He may not comment on irrelevant matters. In particular, and without limitation, he may not deliver a campaign speech, and he may not impugn myself, my staff, plaintiff, plaintiff’s staff or the New York State Court System, none of which is relevant to this case”.

    It seems there really is no law, at all, that Trump feels he is bound by.

  14. vigetnovus says:

    I don’t know. I don’t like boiling the argument down to whether or not impeachment and conviction is the only remedy by which a former president can become criminally liable for “official” acts. While, yes, it is very easy to come up with absurd counterexamples that nearly everyone would agree are counter the interests of justice, since when has that stopped this SCOTUS from agreeing with that logic, especially if they want to hew to this “originalist, textualist” interpretation of the Constitution?

    To me, such a decision by the DC Circuit is just teeing the issue up for Alito and Thomas (and likely Gorsuch) to reject on their “textualist” grounds, and perhaps arm-twist Kavanaugh and Barrett to go along with. And the precedent it sets would basically pave a legal road for Trump to become dictator-for-life.

    I feel as though any opinion on this case needs to completely divorce impeachment from the criminal process, reinforce the concept that no person is above the law, and clearly state that the official vs. unofficial dichotomy only pertains to civil issues (as it does for other officers of the US Gov’t). And while they’re at it, finding that the President is “an officer of the United States” but rather a constitutional one vs. a statutory one, would be very helpful as well, and the only privilege that confers is that the only method for removal is impeachment and conviction, rather than dismissal as it is for other executive branch officials (other than the VP).

        • timbozone says:

          There’s only likely two that would entertain any such nonsense when it comes to most of these arguments. And one of them might recuse himself (especially if he ain’t interested in entertaining this nonsense any further). Best to wait and see rather than get worried about this sort of nebulous speculation though.

    • 2Cats2Furious says:

      The Impeachment Clause does NOT say that a former POTUS (or any other federal official subject to impeachment, such as Article III judges who otherwise enjoy lifetime appointments) can be criminally prosecuted “ONLY if” or “ONLY after” he is first impeached by the House and convicted by the Senate, which is the argument that Trump’s attorneys are making. The word “ONLY” does not appear anywhere in the text of the clause, which means any textualist should reject such argument. When you have to start adding words to the Constitution to make your argument work, then it doesn’t work.

      Pan made this point at the hearing when she suggested that if a POTUS can be held criminally liable if impeached and convicted, then the only question remaining is whether Trump’s “interpretation” of the Impeachment Clause is correct, which it isn’t.

  15. bloopie2 says:

    And now, Sen. Mendendez also is immune.

    “U.S. Sen. Robert Menendez blasted federal prosecutors’ bribery case against him on Wednesday, arguing the case should be tossed because the alleged illegal conduct he engaged in is immune from prosecution. In a motion to dismiss the indictment alleging he accepted gold bars in exchange for acting as an agent of a foreign government, he said the government’s accusations against him “are outrageously false, and indeed distort reality.””

    Hey, where can I get some of that immunity juice? I didn’t see it in any of the year-end recipes here. I can think of lots of occasions in my life where it would come in handy.

          • billtheXVIII says:

            no offense intended timbo, just opining that there are arguments that go to the merits of the case and there are arguments that are aimed at nullification, delay and PR. Arguments that politicians can never be held liable for anything they do are firmly in the latter category, and I readily admit that our current Supreme Court may disagree with me.

      • ShallMustMay08 says:

        Not an unfair question actually. Immunity has been abused and quirky I think I read yesterday that Ho in 5th refused another immunity. I may be wrong (so much to follow) but if that guy and that district can do anything positive – it will be rolling back the garbage from the 5th. So hope for splits.

        Of course until it gets further upwards – they’ll all make sure to keep the little compressed.

  16. David Brooks says:

    I suppose the infamous OLC memo about not indicting a sitting president contemplates crimes that may be serious, but fall short of being high crimes and misdemeanors. Not taking a stapler home from work perhaps, but there must be some actions that fit into the gap. What is Sauer’s theory on such?

    • bloopie2 says:

      Wait. Taking a stapler home from work is a crime? Crap. What about pens? I mean, they don’t even sell pens at the store anymore do they, everyone gets them from work. Except at the bank, they’re on those little string things. And the policy that they can read everything on your work computer, doesn’t that mean we can use it for Amazon and Facebook? If not, man, I’m … oh … gotta run someone’s coming.

      • P J Evans says:

        Gee, you mean I was doing it Wrong when I took my own supplies to work? (That was so I could get the stuff that I preferred.)

  17. morganism says:

    The 14th virus gets political, Castro arrested on tax fraud charges supposedly settled in 2021.

    (…)
    Castro is also a 2024 GOP presidential candidate, a long-shot bid that has gained little attention outside his legal challenges to Trump’s ballot eligibility. Castro has filed challenges to Trump’s ballot placement in 27 states, claiming that Trump’s involvement in the Jan. 6 Capitol riots violates the 14th Amendment.

    He was indicted on the same day that his ballot challenge in New Hampshire was dismissed. His attempts have also been thrown out in Florida and most recently in Nevada on Tuesday. While multiple 14th Amendment suits remain pending, none have gained significant traction.

    However, other challenges to Trump’s eligibility using the same arguments have succeeded, with attempts in Colorado and Maine both taking Trump off the states’ ballots, pending action from the Supreme Court. The high court said last week that it will hear the merits of the Colorado case.

    Castro told The Hill that he denies wrongdoing and believes the case is politically motivated, “no question about it.”

    He said his firm settled the tax return matter with the IRS in 2021, claiming that certain clients misinterpreted tax law. Castro said his firm paid back about $700,000 in 2021 to resolve the discrepancies.

    “I don’t care if they offered me one day probation and a slap on the wrist in exchange for a guilty plea,” he said. “This is going to trial. I am going to convince all 12 jurors that I am 100 percent innocent and that this is political retaliation.”

    Castro claimed the prosecution is related to his 14th Amendment challenges against Trump due to timing of the indictment. The alleged fraudulent returns were filed between 2018 and 2020.

    He also said a stipulation of his release keeping him inside the Northern District of Texas without prior permission could endanger upcoming appearances for 14th Amendment challenges in West Virginia, Kansas and Montana.

    Castro is due back in court Jan. 17.

    https://thehill.com/regulation/court-battles/4400782-trump-14th-amendment-political-challenger-arrested-on-federal-tax-charges/

    • SteveBev says:

      What the Hill doesn’t describe fully is this

      “In 2018, an undercover agent, posing as a taxpayer, contacted Castro & Company, LLC for assistance. Castro refused to meet in person unless a $5,000 retainer was paid but offered to assist the undercover agent virtually. During a recorded telephone conversation, Mr. Castro stated that he could project the amount of the tax refund the undercover agent would likely receive from another firm and then compare that figure with the refund that Mr. Castro would obtain.“
      DOJ press release
      https://www.justice.gov/usao-ndtx/pr/mansfield-man-charged-fraudulent-tax-return-scam

      So the idea that this is a politically motivated prosecution seems a stretch.
      Whatever repayments of fraudulently obtained rebates were made by Castro, commercially operating a systematic tax scamming scheme for gain still seems like a thing requiring prosecution IMHO

  18. morganism says:

    (i missed this 14th filing. Was on reapportionment penalties for gerrymander and voter purges and other violations of VRA type laws. It appears to be ongoing. Pretty weird that has not been enforced)

    Citizens for Const. Integrity v. Census Bureau

    Dec. 22, 2023
    Topic Tags: 14th Amendment | Census | National | Reapportionment

    On November 17, 2021, the Citizens for Constitutional Integrity filed a federal lawsuit against the U.S. Census Bureau, its Director, and the Secretary of the Department of Commerce challenging the Bureau’s apportionment of congressional representatives following the 2020 Decennial Census as violating the 14th Amendment and the Administrative Procedure Act (the “APA”). The plaintiffs suit centers around the never-been-enforced Section 2 of the 14th Amendment (the “Penalty Clause”), which provides that when congressional representatives are apportioned among the States according to their respective numbers, if a State has denied or in any way abridged the right to vote of voting-age citizens other than in cases of certain crimes or rebellion, “the basis for representation therein shall be reduced in the proportion which the number of such [] citizens shall bear to the whole number of [such] citizens . . . in such State.” They allege the defendants failed to implement their duties under the 14th Amendment by failing to adjust the 2020 apportionment of congressional representatives in accordance with this provision, citing various states’ voter registration and voter identification laws as denials or abridgements of the right to vote within the scope of the Penalty Clause, and that by failing to consider and implement the Penalty Clause’s requirements they violated the APA. They are seeking a judicial declaration that the defendants violated the 14th Amendment and the APA and that the congressional reapportionment report based off the 2020 Census is void, an order vacating and remanding the report to the Census Bureau, and an injunction mandating the Bureau reapportion and reissue the report in accordance with the 14th Amendment’s requirements using the Census Bureau’s data of citizens and voter registration rates.
    (more)

    https://thearp.org/litigation/citizens-const-integrity-v-census-bureau/

    https://yalelawandpolicy.org/inter_alia/cornerstone-stability-our-government-forgotten-penalty-clause-and-electoral-reform

    https://www.nyulawreview.org/issues/volume-96-number-4/the-penalty-clause-and-the-fourteenth-amendments-consistency-on-universal-representation/

    • earlofhuntingdon says:

      I assume the bulk of that text is your own writing. Otherwise, there don’t seem to be enough quotation marks or indicators that it’s not. Nor does it identify which of the three sources you cite it belongs to. It also seems a bit long for a quote: cropping and elision marks are your friend.

      • ShallMustMay08 says:

        Appreciate the “elision mark” comment as I had never learned – ever. While I read Norm I did not follow the linguistic field until late in life. But I won’t dismiss good faith commenter. These laws in red states are percolating up and Leo and his gang have the judges in place.

        Looking forward to “topline” running up, down, sideways and whatever else in courts ahead.

        (Being snarky about looking forward to topline. I am not.)

  19. Tech Support says:

    My problem with the “Seal Team Six Assasination” scenario is that, as horrifying as it is to consider, it’s small potatoes. It ends with the President escaping justice through resignation. That’s adorably naive.

    In any situation in which Impeachment is a prerequisite to holding a sitting President accountable for crimes, then what stops the president from taking Impeachment completely off the table by taking the Speaker of the House’s family into custody, confining them in, say, Gitmo, and making clear to the Speaker that exercising their authority is subordinated to the wishes of the executive. That goes for the President of the Senate, committee chairs, and SCOTUS as well.

    With the executive branch as the sole custodian of government’s capacity to engage in violence and coercion, this line of reasoning moots the separation of powers itself.

    • earlofhuntingdon says:

      The ST6 scenario is not small potatoes. That they might do it, regardless of it being an unlawful order, degrades them, the Navy, and the military services. But the greater problem is that it illustrates the kind of lawless, unrestrained power Trump’s logic demands he have and be free to wield. His whims would yield to no law, rule, practice, or other hindrance. That threatens the world, not just the US.

      • Rayne says:

        I am fighting the urge to write a post about this, because I don’t want to write what could essentially be the proposal for the horror Trump or someone like him to realize if the court doesn’t restrain him by strongly emphasizing no one is above the law.

        We could look at January 6 as not only an attempted insurrection and rebellion, but a proof of concept. Imagine POTUS refusing to call out law enforcement and military in the event of a localized uprising; imagine the chain of succession eliminated in this uprising within a matter of hours if not minutes. Imagine the other uprisings at state houses which happened concurrently taking out entire state governments. Imagine martial law implemented until new governments were forced into place in 2/3rds of the states, and then the president pardoning all before resigning and leaving the country for a balmy place while the new state governments mount a constitutional convention, remake the constitution, and install a strong man.

        Maybe this could be done far more neatly but it would have the gloss of constitutionality.

        We are and have been so fucking close to the edge.

        • timbozone says:

          You might want to. As you commented elsewhere, the pardon of a domestic war criminals by Trump was likely a signal to undermine good military adherence to oaths by service and combatant personnel to the Constitution and the laws of war.

        • harpie says:

          SO fucking close.

          There is probably nothing you could write
          that hasn’t already been [or is being] imagined.

        • harpie says:

          Marcy Retweeted this from Ryan Reilly the other day:
          https://nitter.net/ryanjreilly/status/1745064940883284394
          Jan 10, 2024 · 12:47 PM UTC

          I saw him as a man who was worried about what was going on in the country…”

          “I considered him a patriot and wished more Americans were like him.”

          — a retired FBI supervisory special agent, on Jan. 6 defendant Clayton Mullins, seen here dragging a cop down the Capitol steps

          “There’s no good way to say it, so I’ll just be direct: …there is, at best, a sizable percentage of the employee population that felt sympathetic to the group that stormed the Capitol.” [link]

          Links to [This is from 2022]:
          FBI official was warned after Jan. 6 that some in the bureau were ‘sympathetic’ to the Capitol rioters “There are definitely varying degrees of enthusiasm from agents across the country,” a source told NBC News. Oct. 14, 2022, 11:38 AM EDT

        • Ginevra diBenci says:

          Rayne, please do write that post. Those (like Chris Christie and Liz Cheney) who focus on Trump as the source of all that’s wrong in the country now have very selective blinders on; yes, we need them and their reminders about the rule of law, but they also profited from the systems and undercurrents that made a Trump presidency possible.

          In some ways, Trump is the worst of America made visible, a reactionary and fearful terrorist trying to remake the nation in his false image of the past. The fact that so many follow and enable him testifies to our national moral corruption.

          He is the figurehead of a newly empowered backlash movement. Anyone who received or fought for rights in the 20th century will be pushed back down into “their place.” Anger is the coin of this coward’s new world. All joy is derived from finding a repository for your rage and beating them with it.

          I never watch him when he speaks. I watch his crowds. They terrify me more.

  20. harpie says:

    This morning, Marcy retweeted Jed Sugarman:

    https://nitter.net/jedshug/status/1745830406526505085
    Jan 12, 2024 · 3:29 PM UTC

    I’m interrupting my 2-month Twitter hiatus b/c I’ve just found a highly relevant speech from the Ratification debates (1788):

    Against Presidential Immunity & Unitary Executive theory (interpreting the Opinions Clause).

    Future SCOTUS [James] Justice Iredell, NC Convention, 7/28/1788: [screenshots of pages 108-110] [THREAD]

    • harpie says:

      I’ve typed an excerpt of pg109, which Sugarman discusses in his THREAD:

      [p.109] [italics original] […] and the reasons which prevail in Great Britain for a council do not apply equally to us. In that country, the executive authority is vested in a magistrate who holds it by birthright. He has great powers and prerogatives, and it is a constitutional maxim, that he can do no wrong. We have experienced that he can do wrong, yet no man can say so in his own country. There are no courts to try him for any high crimes; nor is there any constitutional method of depriving him of his throne. If he loses it, it must be by a general resistance of his people, contrary to forms of law, as at the revolution which took place about a hundred years ago. It is therefore, of the utmost moment in that country, that whoever is the instrument of any act of government should be personally responsible for it, since the king is not; and, for the same reason, that no act of government should be exercised but by the instrumentality of some person who can be accountable for it. Every thing, therefore, that the king does, must be by some advice, and the advisor of course answerable. Under our Constitution we are much happier.

      No man has an authority to injure another with impunity. No man is better than his fellow-citizens, nor can pretend to any superiority over the meanest man in the country. If the President does a single act by which the people are prejudiced, he is punishable himself, and no other man merely to screen him. If he commits any misdemeanor in office, he is impeachable, removable from office, and incapacitated to hold any office of honor, trust, or profit. If he commits any crime, he is punishable by laws of his country, and in capital cases may be deprived of his life. This being the case, there is not the same reason here for having a council which exists in England. […]

      • Rayne says:

        Beautiful. Appreciate much your transcription, harpie. This is excellent.

        John Adams referred to “a government of laws, and not of men” when describing a republic in an essay before the Declaration of Independence. He used that phrase again in his draft of the state of Massachusetts constitution in 1779. This is a nation of laws, not men; we rejected rule by autocratic monarchy and empire. The Executive is not vested with unilateral power but charged with executing the will of the people through the nation’s laws.

        • harpie says:

          Well said, Rayne!

          I have to first say the I misspelled Shugarman’s name…twice! OY!

          He’s writing a book:
          “A Faithful President: The Founders v. the Originalists”

          Now that sounds interesting!

          Also, I want to emphasize the last tweet in his THREAD:

          9/ Note: Iredell thinks it’s obvious that “misdemeanors” lead to impeachment and disqualification, while “crimes” would be prosecuted – overlapping but separate processes.

          Iredell thinks this is obvious as legal background before he makes his actual argument about cabinets.

        • harpie says:

          On Xitter, a person named Steve Jost [“data nerd”] says to Shugarman:

          I hope this leads to a treatise that exposed all the fallacies in the Unitary Executive manufactured theory.

          Shugarman’s response [I want to bold the whole thing!]:
          https://nitter.net/jedshug/status/1745914949472293060
          Jan 12, 2024 · 9:05 PM UTC

          Working *on* it. So many flagrant and huge errors by “originalists”, and so many messes created by the Roberts Court in so many dangerous areas, it’s tough to finish this book.

          • Ginevra diBenci says:

            After he’s finished off the Originalists, I hope Shugarman takes on the “textualists.” I would suggest Marcy for that, but she seems too busy pursuing more immediate threats.

            Thank you so much, harpie, for this addition! I’m so glad I saw it.

  21. Charles Wolf says:

    Impeachment does not put anyone “… in jeopardy of life or limb.”

    (Apparently the USC is OK with amputating shoplifters)

Comments are closed.